1. The description in the indictment for cattle stealing was "one animal of the male sex and of the species known as cattle, being a white-face Hereford bull weighing about 750 pounds, marked overbit and under bit and crop in *Page 567 the left ear, and marked split and under bit in right ear, in the value of $60." It is generally recognized among people who deal in cattle that the most distinctive mark that is known by which cattle may be identified is what is called the "earmark," and where the earmark of the bull alleged to have been stolen was one thing and the earmark proved was a different one this was a fatal variance. "Though it was unnecessary to have described the animal by the earmarks, yet the descriptive terms of the indictment having gone to this extent, the burden was assumed of proving the specific marks alleged." Crenshaw v. State, 64 Ga. 449. Again, the Supreme Court has said: "While it is not essential, in an indictment for the larceny of an animal, to describe it by earmarks, yet, if this be done, the description must be proved as laid." Robertson v. State, 97 Ga. 206 (22 S.E. 974). And in a case of this character the Supreme Court has in effect said, in answer to a certified question from this court, that the failure to prove the earmark as laid "Is a case of omission of evidence to prove a material descriptive averment alleged in the accusation." Smith v. State, 185 Ga. 365, 368 (195 S.E. 144). Whatever may be my opinion about this rule, I feel bound by the former decisions of this court and the Supreme Court which I think have ruled that there is a material variance between the allegation in the indictment and the proof upon the trial of the case. The instant case is not one in which the description in the indictment is made more certain and added to by supplemental evidence, but it is one where the evidence contradicts the description in the indictment. The animal being described as marked with one earmark and the animal proved being marked with another earmark, the supplemental description in the evidence could not overcome or wipe out the variance between the earmark alleged and the earmark proved. The earmark alleged and the one proved being so contradictory, they could not be reconciled as being the same earmark and thus describing the same animal. Irrespective of whatever else the State may have proved, it failed to prove this material averment alleged in the indictment, and this failure, as I understand it, was fatal to the State's case under the rule of law stated by the Supreme Court in answer to a certified question from this court in Smith v. State, supra. I think the judgment should be reversed. *Page 568